Tuesday, June 9th, 2020

District Court Erred in Denying 3rd Point for Acceptance of Responsibility, Despite a Government Motion on the Defendant’s Behalf, Based on Its Belief that the Defendant’s Suppression Motion Caused the Government to Do Work that Overlapped with Trial Preparation

Reading a 45-page opinion about the “third point” in the acceptance-of-responsibility Guideline, U.S.S.G. § 3E1.1(b), makes one wonder whether Booker was but a dream. Why, one might ask, do judges in 2020 care so much about a miniscule adjustment to the offense level when they can simply go outside the advisory range and impose whatever sentence they believe just under the circumstances? Perhaps numbers comfort those tasked with punishing their fellow humans without the security blanket of mandatory directives. Who knows.

That beef aside, this is a fine opinion by Judge Lynch – thorough, well-written, and well-reasoned as always. In United States v. Marilyn Vargas, No. 19-463, __ F.3d __ (2d Cir. June 9, 2020), the Court held that District Judge Caproni erred in denying the 3rd acceptance point following the defendant’s guilty plea, despite a Government motion on the defendant’s behalf, based on her view that the defendant’s pretrial suppression motion caused the Government to do a lot of work that overlapped with the work that it would have had to do at a trial.

Section 3E1.1 of the Guidelines provides, in two subsections, for a 3-level of a defendant’s offense level. First, subsection (a) provides that “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense,” the court shall “decrease the offense level by 2 levels.” U.S.S.G. § 3E1.1(a). Second, subsection (b) provides for a further one-level decrease if  “(1) the defendant qualifies for a reduction under subsection (a); (2) the defendant’s offense level prior to the application of subsection (a) is level 16 or higher; and (3) ‘upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently[.]’” Opinion at 8 (quoting  § 3E1.1(b)). At issue here is the meaning of the third requirement.

Here are the relevant facts. After her arrest, Vargas filed a suppression motion challenging the Government’s seizure of evidence from her car. The court conducted two evidentiary hearings, heard from several witnesses, and then denied Vargas’s motion after the second hearing on August 22, 2018. The court scheduled trial for September 26th.

On September 5th Vargas pleaded guilty pursuant to a plea agreement with the Government. In the agreement, the Government stipulated to the full 3-point reduction for acceptance of responsibility because, in its view, Vargas had (1) accepted responsibility (2) in a timely manner that saved the Government substantial resources in preparing for trial. The PSR agreed that Vargas earned all 3 acceptance points.

At sentencing, however, Judge Caproni refused to award the 3rd acceptance point under § 3E1.1(b). As the court stated, Vargas pled guilty only “’after a lengthy suppression hearing had been held that required a substantial amount of work on the government’s part,’, and, therefore, her plea did not allow the government to avoid the preparation required for trial.” Op. 5.

Vargas appealed. The Circuit agreed with her that Judge Caproni erred in denying the 3rd point and remanded for resentencing.

First, though, the Court held that a defendant was not entitled to the 3rd point simply upon the Government’s filing of a motion under § 3E1.1(b). Op. 9-11. While that act is a necessary precondition for receiving the 3rd point, it is not sufficient. Rather, the court itself must, after receiving the Government’s motion, determine as a factual matter whether the defendant has in fact timely notified the Government of her intent to plead guilty so as to save it from expending substantial resources to prepare for trial and allow the Government and the court to efficiently allocate scarce resources.

As the Court explains, “the district court is authorized to deny the government’s motion if it determines that the conditions set forth in 3E1.1(b) are not met.” Op. 26. Before awarding the 3rd point, therefore, the district court must determine the accuracy of the Government’s representation (via its motion) that “the defendant’s notification that she intended to plead guilty was sufficiently timely to allow the government and the district court to efficiently allocate their resources.” Op. 32. (The Court’s lengthy historical and linguistic exegesis leading to this conclusion is only for the bravest of heart. See Op. 12-31.)

Nonetheless, the Court ruled that in this case, Judge Caproni erred in denying the 3rd point based on her belief that Vargas’s suppression motion and the (avoided) trial largely overlapped in substance – for instance, the same witnesses who testified at the suppression hearing would appear at trial and the same type of evidence would be introduced at both proceedings. For two reasons, the Circuit explained, the district court “lacked a sufficient factual basis to justify its decision to deny the Government’s motion” for a 3rd point. Op. 34.

First, the district court said nothing about the effect of Vargas’s guilty plea on “the court’s ability to make efficient use of its time.” Id. (emphasis added). And, surely, a plea that came three weeks before the scheduled trial date saved the court’s time and resources: “[B]usy district judges have plenty of other work that can be done in chambers, and other courtroom proceedings that can be conducted, during the time that had been allocated to an aborted trial.” Op. 36.

Second, “the district court’s conclusion that the government, contrary to its own announced assessment, had not saved resources because of the plea rests on flimsy foundations.” Although the district court is not bound by the Government’s motion, the Circuit explained, “it must grant substantial deference to the government’s claim that the timing of the plea allowed it to avoid trial preparation because, as Congress recognized, the government ‘is in the best position to make that determination.’” Op. 36 (quoting U.S.S.G. § 3E1.1 cmt. n.6.). “The district court here failed to do so.”

As the plain language of 3E1.1(b) indicates, its “focus is on the work that the government is spared by the guilty plea, and the more efficient use of law enforcement resources that is enabled when the government does not have to devote time to trial preparation – not on the resources that had already been devoted to litigating the case.” Op. 37. The court thus erred in considering the amount of work the Government had to do in litigating Vargas’s suppression motion: “The text of § 3E1.1(b) does not require a defendant to plead without engaging in pretrial motion practice; it requires that the plea be sufficiently in advance of trial to avoid extensive trial preparation.” Id.

And for its final measure, the Court flatly rejected Judge Caproni’s view that work for the suppression motion largely overlapped with work in preparing for and conducting a trial. As “[a]ny experienced criminal lawyer knows[,] preparing for a jury trial involves more work than preparing for a suppression hearing, and few federal prosecutors would fail to spend most of the last couple of weeks preceding a short trial honing their presentation.” Id. 39.

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